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### STATE OF MICHIGAN

COURT OF APPEALS

RUBEN CASTRO and CHRISTY CASTRO,

Plaintiffs- Appellants, FOR PUBLICATION August 20, 2015

V No. 316639
Washtenaw Circuit Court JAMES ALAN GOULET, MD and JAMES ALAN GOULET MD, PC, LC No. 13-000138-NH

Defendants-Appellees,
and

STEPHEN R. TOLHURST,

Defendant.

Before: R ONAYNE K RAUSE , P.J., and W ILDER and S TEPHENS , JJ.

Wilder, J. ( dissenting ).

I respectfully dissent.

In Tyra v Organ Procurement Agency of Mich , ___ Mich ___, ___; ___ NW2d ___ (2015) (Docket Nos. 148079, 148087, 149344); slip op at 21, our Supreme Court reiterated that:

Although a civil action is genera lly commenced by filing a comp laint, a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable noti ce period has expired, but before the period of limitations has expired. [Emphasis added.]

This holding by the Supreme Cour t reflects the rule of law, est ablished in Scarsella v Pollak , 461 Mich 547, 549-550; 607 NW2d 711 (2000), that “for statute of li mitations purposes in a medical malpractice action case, the mere tendering of a complaint with out the required affidavit of merit [(“AOM”)] is insufficient to commence the lawsuit.”

In the instant case, when plaintiffs filed their complaint on February 4, 2013, they did not file an AOM. Thus, the action ag ainst defendants did not comme nce on February 4, 2013. However, plaintiffs filed a motion to extend the time for filin g the requisite AOM pursuant to MCL 600.2912d(2). The trial court granted that motion on March 8, 2013, and the majority concludes that the granting of t hat motion operated retroactive ly to toll the running of the statute-2- of limitations, such that “plaintiffs acted properly pursuant t o both statute and case law,” and plaintiffs’ complaint is deeme d timely filed. I respectfully d isagree.

The period of limitations for an action charging malpractice i s two years. MCL 600.5805(6). Plaintiffs allege that malpractice by the defenda nts occurred on February 9, 2011. Thus, the statute of limitations for defendants’ alleged malpra ctice, absent tolling, was scheduled to expire on February 9, 2013. This means that plaintiffs were required to commence their action against defendants by February 9, 2013, unless the running of t he limitations period was tolled by virtue of some action taken by plaintiffs. There is no disp ute that plaintiffs’ action was not commenced by February 9, 2013. There is also no dispute that, as of February 9, 2013, the running of the statute of limitations had not been tolled. Thu s, as in Holmes v Mich Capital Med

Ctr , 242 Mich App 703, 709; 620 NW2d 319 (2003), plaintiffs’ effor ts to remedy their failure to file their AOM with the complaint—in this case, the filing and ultimate granting of a motion to extend the time for filing an AOM pursuant to MCL 600.2912d(2)— were, unfortunately,
insufficient because their efforts culminated beyond the limitations period.

The majority concludes that this application of Scarsella and its progeny renders MCL 600.2912d(2) nugatory. I disagree. As statutes sharing a comm on purpose, MCL 600.2912d(2) and MCL 600.5805(6) must be read together as one and construed in a way that produces a
harmonious whole. Basic Prop Ins Ass’n v OFIR , 288 Mich App 552, 559-560; 808 NW2d 456 (2010) (“When construing statutes, the terms of statutory provi sions with a common purpose
should be read in pari materia . . . . Conflicting provisions of a statute must be read toget her to produce an harmonious whole and to reconcile any inconsistencie s wherever possible.” [Quotation marks and citations omitted.]); Ross v Modern Mirror & Glass Co , 268 Mich App 558, 563; 710 NW2d 59 (2005) (“Statutes that relate to the same subject must be read together as one, even if they contain no reference to one another.”). In m y judgment, construing MCL 600.2912d(2) in a manner which requi res a plaintiff to obtain a court order granting the extension
to file the AOM before the statute of limitations expires, such that the cause of act ion against a
defendant is commenced before the statute of limitations expi res, gives meaning to both stat utes.

The defining principle of law is that an action must be commen ced before the period of
limitations for that cause of action expires. See MCL 600.5805 (1) (“A person shall not bring or maintain an action to recover damages for injuries to persons o r property unless, after the claim first accrued to the plaintiff or to someone through whom the p laintiff claims, the action is

commenced within the periods of time pres cribed by this section.” [Emph asis added.]); Ostroth v Warren Regency, GP, LLC , 474 Mich 36, 40; 709 NW2d 589 (2006); Gladych v New Family
Homes, Inc , 468 Mich 594, 598; 664 NW2d 705 (2003), superseded by statute on other grounds. Operating together, it is clear that the statutes underlying me dical malpractice claims respect that defining principle of law. Under MCL 600.5856(c), the filing o f a notice of intent to file suit tolls the running of the statute of limitations. Tyra , ___ Mich at ___; slip op at 7. Upon expiration of the notice period, the period of limitations begi ns running anew, cf. Gladych , 468-3- Mich at 603-604, 1 and the filing of a complaint and affidavit of merit, MCL 600.2912d(1) , or the granting of a motion for an extension of time to file the AOM, MCL 600.2912d(2), once again operate to toll the running of t he statute of limitations. Tyra , ___ Mich at ___; slip op at 7; Solowy v Oakwood Hosp Corp , 454 Mich 214, 229; 561 NW2d 843 (1997). However, each effort to toll the running of the statute of limitations, as we ll as the commencement of plaintiffs’ cause of action, must occur befo re the statute of limitations e xpires. 2

The majority holds that construing MCL 600.2912d(2) to mean so mething other than that

“ the 28-day period must run from the date the complaint is filed , irrespective of when the motion is granted,” would “ make a plaintiff’s rights turn not on the substance of the case or the plaintiff’s compliance with the procedures established by the Legislature, but rather purely on the vagaries of when the trial court, or more likely not even the court but rat her a docketing clerk, chooses to hear or docket the motion.” Again, I respectfully disagree. It is app arent from this record that plaintiffs did not use the means that they had available to them, which, if us ed, could have prevented the expiration
of the statute of limitations before their motion to extend was granted. Pursuant to MCR 2.119(C), a trial court may adjust the time for service and filing of motio ns and responses “for good cause.” Notably, plaintiffs did not request an expedited hearing of the ir motion to extend the time for filing the AOM, and they failed to emphasize on the cover page of thei r motion pleading that there was an urgency in hearing the pending motion because the statute of li mitations would expire on February 9,
2013. 3 Rather than a vagary, it is not an onerous expectation that a plaintiff in this circumstance would make more than a modicum of effort to seek an expedited h earing date from a trial court and

1 Rather than as precedent binding in the instant case, I cite t o Gladych merely to illustrate, by analogy, that the statute of limitations begins running anew af ter previously being properly tolled for some period of time.

2 Moreover, although in Pryber v Marriott Corp , 98 Mich App 50, 56-57; 296 NW2d 597 (1980), this Court concluded that the Legislature, through the enactment of a retroactive law, may revive a cause of action which has already been barred by t he application of a previously existing statute of limitations, I am unable to find any case l aw, and the majority cites to none, which supports the proposition that a cause of action barred by the application of an expired statute of limitations, because that action was not timely comm enced, may be subsequently revived by action of a court of law.

3 Not only did the cover page of plaintiffs’ motion not contain any information that would have alerted the trial court or the docketing clerk that the motion required urgent attention, the contents of the motion stated only the following with regard to the urgency attendant to the filing of the motion: On page three o f the motion, plaintiffs stated that “it appears that the [AOM] shall not be prepared until after February 8, 2013,” due to the expert’s busy schedule. Also on page three, plaintiffs explained that, “[a]lthough it may appea r [that] the filing of this medical malpractice action was held to the last possible time,” they wa ited to file their claim because plaintiff Ruben Castro had been i nformed that his symptoms woul d cease some number of weeks or months after the surgery, an d he still suffered from the con dition “just short of two [2] years from the date of surgery on February 9, 2011.” While plaintiff s hint at a statute of limitations problem, plaintiffs’ pleading di d not expressly identify this i mpending problem for the trial

court.-4- docketing clerk, neither of which can be reasonably expected, w ithout prompting by the moving party, to read through every pleading filed in the trial court in order to recognize that a particular matter requires urgent attention. Thus, contrary to the majori ty, I would find that plaintiffs failed to make reasonable efforts to request that the trial court suspend the normal time limits imposed under MCR 2.119(C) due to the impending expiration of the statute of limitations, and that the facts of this case do not warrant holding either the trial court or the docke ting clerk responsible for plaintiffs’ failure to commence their cause of action against defendants in a timely manner.

Contrary to the majority’s fi ndings, I would find that: 1) bec ause plaintiffs did not file the AOM with the complaint on February 4, 2013, the lawsuit was not commenced under Scarsella ; 2) under Ligons and Barlett , the filing of the motion to extend time for filing the AOM ha d no tolling effect; and 3) because the statute of limitations expir ed on February 9, 2013, before it granted the motion to extend, the trial court properly found th at its March 8, 2013 order had no tolling effect.

I would affirm.

/s/ Kurtis T. Wilder